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High Court refuses to completely lift injunction on RTÉ over Denis O'Brien story

RTÉ lawyers maintained much of what the injunction relates to is now in the public domain.

Denis O'Brien
Denis O'Brien

Updated 11.45am

THE HIGH COURT HAS refused to completely lift an injunction preventing RTÉ from broadcasting details of Denis O’Brien’s banking arrangements, in a ruling this morning.

The injunction was granted last month to the businessman Denis O’Brien and the Irish Bank Resolution Corporation (IBRC).

Last week, lawyers for RTÉ told the court the injunction against the broadcasting of details was now pointless due to all the information now being in the public domain.

Justice Donald Binchy said it was not appropriate to vacate the existing order in full but would amend it to take into account recent events, which he said were “dramatic”.

He will hear further submissions of the amended order next week, where the issue of costs will also be dealt with.

Many of the details RTÉ wish to broadcast have already emerged following statements made by Independent TD Catherine Murphy.

Sinn Fein’s Pearse Doherty also made statements in relation to IBRC and Denis O’Brien under privilege in the Dáil.

While the judge said RTÉ had acted responsibility throughout the case, he said the original decision of the court still applies in relation to any documentation or information that has not yet come into the public eye.

Justice Binchy said he did not believe there was anything in Sinn Fein’s Pearse Doherty’s speech to the Dail this week that contained any legal advice.

He noted Mr O’Brien no longer opposes the publication the RTÉ report on his dealings with IBRC which led to the injunction application. However, he stated that IBRC claimed it was entitled to legal professional privilege on some aspects contained in the report.

He said he was not disposed to vacate the order to the extent that it would enable RTÉ publish information in the form of legal advice between IBRC and legal advisors, stating that it was subject of legal professional privilege.

The judge said that part of the script that RTÉ intended to broadcast referred to “or may reasonably be considered to be derived from legal advice” and while some of it may already be in the public domain, IBRC asserts an entitlement to legal professional privilege of certain aspects of the script RTÉ wishes to broadcast”.

Justice Binchy said:

“While I will, if necessary hear submissions s to whether or not any of the information contained in the script which is derived from legal advice has come into the public domain, at this point I am not disposed to vacate the order to the intent of enabling the defendent [RTÉ] to publish any information that discloses legal advice giving to IBRC… unless I am satisfied that such information is already in the public domain.”

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He said, in his view, the protection of absolute nature of legal professional priviledge is a pressing social need.

The judge said it would be “utterly inappropriate” for a court to make a decision which would have the effect of eroding, even in the slightest degree, the right of the citizen to take legal advice secure in the knowledge that it was in confidence and would be protected by the courts.

Justice Binchy said if that confidence is undermined the damage to the administration of justice would be, in his view, “immeasurable”.

“It also needs to borne in mind that Mr. O’Brien has presented evidence to the court that he is likely to sustain significant financial losses, incapable of quantification, if his private banking affairs are put into the public domain.

The court has already found that damages would not be an adequate remedy if this were to occur.

While Mr. O’Brien may have already sustained damage by reason of the information already put into the public domain, that in itself, is not a reason to suppose that he may sustain further damage if more of his confidential information is published.”

 

First published 10.40am

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